Chew on it

Ms Chew was a single mother, with primary responsibility for the care of her young children. She was employed as a police officer for the Avon and Somerset Police Force.

They operated a rotating shift pattern which she found did not fit with her available child care arrangements which could only cover a 'standard' pattern of fixed and regular week day hours. Ms Chew applied to work part time, but her application was rejected because her proposals did not fit within the shift system.

Ms Chew lodged a claim of indirect sex discrimination under the Sex Discrimination Act 1975, arguing that the requirement for shift work operated by the police force disadvantaged a greater proportion of women than men, could not be justified and was such that she could not comply with it. She produced statistics showing that, out of a work force of some 3,016 police officers, ten were unable to do shift work, all of them women. The Tribunal held that ten out of 3,016 was statistically significant and therefore did set up an indirect discrimination claim, and the police force had not on the facts justified the policy.

The appeal before the Employment Appeal Tribunal raised a number of issues, but was primarily concerned with whether the ten women out of 3,016 was statistically significant enough for an indirect discrimination case to be made out. The EAT decided that it was.

Relying primarily on the Court of Appeal in London Underground v Edwards (No 2)[1998] 364 IRLR, it held that it was not necessary to approach the issue of disproportion in the indirect discrimination provisions solely by reference to statistics.

Statistics were only one way of proving disproportionate impact, but there were others. For example in Edwards the workforce was predominantly male and of the 2,000 men, all of them could comply with the shift patterns. Of the 21 women, only one, Ms Edwards, could not comply.

Nonetheless in Edwards,the Court of Appeal held that disparate impact was established despite the relative statistical insignificance of the figures. This was because the statistics did not present the full picture, and taking into account the predominantly male workforce it had to be taken on board that all of the men could comply. Likewise, although only one woman could not comply, the numbers of women in the workforce were very small (which was significant in itself) and anyway one woman represented five per cent of that female group.The EAT in Chew follow this 'flexible' approach to uphold the Tribunal's findings on disparate impact, on the basis of statistics similar to those in Edwards.

Chew illustrates the use of the indirect discrimination provisions of the Sex Discrimination Act. It demonstrates the social consequences of shift working for parents, particularly rotating shifts. Shift working does not fit well with the generally rigid and inflexible hours operated by most nurseries and child minders. Shift working may work where a partner has a flexible job, but for single mothers in particular, it is simply unworkable.

Now with the Sex Discrimination (Indirect Discrimination and Burden of Proof) Regulations 2001 in force (seeLELR 62, September 2001)we can hope for more options for proving the disproportionate impact beyond the narrow world of statistics within workplaces.